At least two Trump-appointed judges of a three-judge panel of the 9th U.S. Circuit Court of Appeals appeared ready Thursday to lift an order barring the Trump administration from sending Oregon National Guard troops to Portland.
During their questioning in the 73-minute hearing, 9th Circuit Judges Bridget S. Bade and Ryan D. Nelson were critical of Oregon Judge Karin J. Immergut’s decision to restrict President Trump’s assessment of conditions at Portland’s ICE field office to what was happening there in September instead of earlier in the summer.
Bade and Nelson also spoke of the need to provide greater deference to a president who they said likely knows more about what’s going on inside the federal building than what is seen from protests outside.
The U.S. Immigration and Customs Enforcement building in a South Portland residential and business district was the scene on June 14, July 4 and Sept. 1 of three tumultuous protests over the administration’s immigration crackdown. On June 14, several people used a stop sign then as a makeshift battering ram to shatter the building’s glass front door and Portland police declared a riot.
In recent weeks, typically no more than a few dozen people have gathered to yell at federal officers and stand near its driveway. Federal prosecutors have charged some with assaulting officers. A Portland police supervisor has said the federal officers appear to have instigated some of the confrontations.
Bade said Immergut, a Trump appointee to the U.S. District Court in Portland, penalized the president for “using the National Guard as a last resort rather than as a first resort.”
Immergut refused, Bade said, to consider the larger protests and violence outside the building in June and July and weighed only the conditions in September near the time of Defense Secretary Pete Hegseth’s Sept. 28 memo calling 200 Oregon National Guard troops into federal service for 60 days in Portland.
Nelson said the question of whether the president is able to execute federal laws is “an internal decision” and “whether there’s a ton of protests or low (number of) protests, they can still have an impact on his ability to execute the laws.”
“I’m just trying to figure out why we’re giving, you know, district court, the ability to say, ‘Well, this is what I see on the outside, so therefore I’m going to transfer that on to what’s going on behind the scenes,’” Nelson said.
The arguments before the three-judge panel mark the latest step in fast-developing legal maneuvers as Trump pushes to put National Guard boots on the ground in Portland to protect the ICE building over the objections of Oregon’s governor and Portland’s mayor.
It follows Immergut’s ruling last Saturday granting a 14-day restraining order barring Trump from sending Oregon National Guard troops to Portland.
Immergut found that the Trump administration lacked any legal justification to mobilize troops, noting no threat of rebellion exists in Portland, that local police can handle the protests at the ICE building and federal officers are still able to enforce federal laws with “regular forces.”
Immergut found Trump’s mobilization of the state National Guard unlawful had not met any of the criteria set out in federal law Title 10, Section 12406 that he cited to invoke his authority.
Deputy U.S. Assistant Attorney General Eric Dean McArthur, representing Trump, urged the appellate panel to allow Trump to deploy Oregon National Guard members to protect Portland’s immigration enforcement field office, contending the Federal Protective Service is overwhelmed.
The agency had to divert 115 Federal Protective Service officers from across the country to help there 24 hours a day, seven days a week, and bring in ICE Special Response Teams to prevent violent protesters from “attacking immigration officers and the ICE facility,” he said.
“Although we do think the judge was clearly wrong to circumscribe the inquiry to what was happening in September, I think the district court also did minimize the violence in September,” he said.
Oregon Assistant Attorney General Stacy Marie Chaffin, representing the state, shot back that the 9th Circuit in the California case challenging National Guard deployment to Los Angeles said previously that “minimal interference isn’t enough” to justify an inability to execute federal laws.
The federal government provided evidence in the record that the Federal Protective Service is short-staffed and having administrative difficulties as a result, Chaffin said.
“That is not a reason to bring the military into the streets of Portland or any other city in the United States,” she argued. “There needs to be something more than a deficit of employees to raise to the level of such a significant incursion into the sovereignty of a state. It needs to be more.”
Senior Circuit Judge Susan P. Graber, appointed by President Bill Clinton, and Nelson asked other questions about which definition of rebellion they should consider, whether they should consider historical examples of when a rebellion was cited to justify previous federal deployment of troops on U.S. soil and what document Trump relied on to authorize the deployment of National Guard to Portland.
McArthur cited Trump’s June 7 memo, titled “Department of Defense Security for the Protection of Department of Homeland Security Functions,” which said “numerous incidents of violence and disorder,” “significant damage” to immigration facilities in response to immigration enforcement and “credible threats” constituted a “form of rebellion against the authority” of the U.S. government. He also cited Trump’s Sept. 27 post on Truth Social that he was directing the defense secretary to provide all necessary troops to “protect War ravaged Portland, and any of our ICE Facilities under siege from attack by Antifa and other domestic terrorists.”
But Chaffin said it’s unclear what document the president relied on, since the June 7 memo was in response to an escalation of protests in Los Angeles at that time that were more violent and lasted longer than the ones in Portland.
“You’re not suggesting that we need some formal order that represents final agency action by the President, are you?” Nelson asked.
Chaffin simply reiterated that the June 7 memorandum was not related to Portland and was “exceptionally stale” by the time that Trump ordered the Oregon National Guard troops under federal control to be deployed.
Chaffin further argued that the federal government’s definition of rebellion is “so broad that it could potentially encompass a significant amount of protected speech and protest activity.” In the California case challenging the National Guard’s deployment, the 9th Circuit noted that both invasions and rebellions are “unusual and extreme emergencies that threaten the normal operation of civil government,” she said.
“It needs to be this significant, intense, large-scale situation that really has such a large impact on the fabric of the country,” she argued.
While that may be true, Nelson said the definition used by Immergut “seems so narrow that it doesn’t comport” with previous occasions where the National Guard or militia has been used.
In Immergut’s order, she noted that the state of Oregon advocated for defining rebellion as an “open, organized and armed resistance” to an established government or leader of a country, while the federal government favored a looser definition, an “open resistance or opposition to an authority,’' or “disobedience of a legal command.”
Immergut, following the lead of a California federal judge handling a similar case there, decided that for a rebellion to exist, it must have these key characteristics: It must not only be violent but armed, organized and must be “against the government as a whole,” rather than in opposition to a single law or issue.
McArthur, for the federal government, argued that Immergut’s chosen definition would not have allowed for the circumstances of the Whiskey Rebellion of 1794, when former President George Washington called up the militia, a precursor to today’s National Guard, to suppress an insurrection by western Pennsylvania farmers protesting a federal excise tax on whiskey.
Graber also asked what the term “regular forces” means in the federal code that says the president can call up the National Guard when he’s unable “with the regular forces” to execute federal laws. McArthur said he believed that term only should refer to federal officers, such as Homeland Security and Federal Protective Service officers, not local or state police.
Bade asked how Immergut’s subsequent temporary restraining order, issued last Sunday night that bars Trump from deploying any National Guard troops from any state to Oregon, will affect the 9th Circuit’s ruling on the initial temporary restraining order that dealt only with Oregon troops.
“Even if we stay the first order, the second is still in place,” she noted.
The federal government’s attorney said if the appellate court grants a full stay on the Immergut’s order on the Oregon Guard, the federal government would then go back and ask Immergut to dissolve her second broader order.
If she didn’t, then the Trump administration would come back to the appellate court, McArthur said.
Nelson pointed out that the federal government has not filed a notice to appeal the second order.
“We are to decide on the state of the world as it exists today,” Gruber said to McArthur. “You have the burden to demonstrate that there’s harm . If the federalized National Guard members cannot be deployed — which is the state of the affairs today — what is the harm that you are suffering? … I have trouble seeing harm if nothing changes.”
McArthur said the harm would be the inability to deploy National Guard members to address the risk of violence at the ICE facility.
“But that’s not because of this case,” Gruber said. “It’s because of the second TRO.”
McArthur said the second restraining order rested on the same reasoning Immergut used to form the basis of her first restraining order, so he’d expect Immergut to dissolve the second restraining order if the panel pauses the first one.
If not, and the 9th Circuit believes the Trump administration must appeal the second temporary restraining order and consolidate the two cases, it will do that as an alternative, McArthur said.
Lastly, Nelson chided the city of Portland for issuing a zoning violation to ICE after federal officers had boarded up the windows of the building and closing it for about three weeks to protect it from objects thrown during protests.
“They reopened the building. They board the windows for protection. What does the city of Portland do? They issued a zoning violation,” Nelson said. “Do you think that was maybe ill-advised?
Chaffin, the Oregon lawyer, responded, “Luckily, in this case, it’s not something that the court needs to decide to determine whether or not the President’s determination” was within the range of “honest judgment.”
It’s unclear when the 9th Circuit will issue its ruling, but it will likely come before Immergut’s Oct. 17 hearing on whether she should extend her temporary restraining order for another 14 days.
The hearing came a day after the three-judge appeals panel issued a brief administrative hold on Immergut’s initial temporary restraining order, ruling that Oregon National Guard members may remain under federal control but cannot deploy to Portland, until it decided whether to issue a longer hold pending the federal government’s appeal.
The hearing was held as a federal district judge in Chicago heard a simultaneous challenge by the state of Illinois to block the deployment of Illinois and Texas Guard members from federal service in that city. About 200 Texas Guard troops were sent to Illinois and started working in the Chicago area on Wednesday.
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